Citizens Interested in Transfusion of Yesteryear v. Board of Regents of University of Washington, 43786
| Decision Date | 08 January 1976 |
| Docket Number | No. 43786,43786 |
| Citation | 86 Wn.2d 323,544 P.2d 740 |
| Parties | CITIZENS INTERESTED IN the TRANSFUSION OF YESTERYEAR, a voluntary association, et al., Respondents, v. The BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON et al., Petitioners, and Unico, a Delaware Corporation, Petitioner. |
| Court | Washington Supreme Court |
Slade Gorton, Atty. Gen., John S. Robinson, of counsel, Olympia, James B. Wilson, Senior Asst. Atty. Gen., Seattle, John P. Harris, Corp. Counsel, Gordon F. Crandall, Seattle, for appellants.
Norman L. Winn, Seattle, Williams, Lanza, Kastner & Gibbs, DeWitt Williams, Jerry B. Edmonds, Seattle, for respondents.
This case is before the court on a writ of certiorari. It was granted to review an order of the King County Superior Court which denied a motion by the Board of Regents of the University of Washington to dismiss this lawsuit.
The dispositive issue is whether the plaintiffs have commenced, I.e., established, a viable lawsuit protesting, under the provisions of the State Environmental Policy Act (SEPA), 1 certain actions of defendants, the Board of Regents of the University of Washington, the unnamed individual members thereof, the City of Seattle, and Mr. Alfred Petty, Superintendent of Buildings of the City of Seattle.
On August 13, 1974, the plaintiffs filed a pleading entitled 'Application and Affidavit for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief.' Basically, the plaintiffs alleged in their complaint that the defendants had failed to comply with certain requirements of SEPA with respect to a 1-square block real-estate development, construction and building project in downtown Seattle (the Rainier Square Project). 2 The project is located on a portion of the well-known Metropolitan Tract, the fee of which is in the State of Washington. Management responsibilities for the Metropolitan Tract are vested in the Board of Regents. Pursuant to statutory authority, 3 the Board, after consideration of several competitive bids, leased a certain portion of the Metropolitan Tract with existing buildings to UNICO Properties, Inc., 4 on July 18, 1953. The purpose of the lease was for UNICO, a private Delaware corporation, to manage the existing property and to submit to the Board from time to time recommendations for its improvement and development.
On July 30, 1973, UNICO proposed improvement of the property which involved development of the Rainier Square Project. The project finally was approved by the Board on August 2, 1974, pursuant to the terms of the above-mentioned lease. UNICO entered into the necessary contracts for the construction and financing of the project. Ostensibly as required by SEPA, final notice of the Board's action approving the project was (1) filed with the Department of Ecology by letter dated August 8, 1974, and (2) published in a newspaper on August 16, 1974.
On August 20, 1974, the complaint for declaratory and injunctive relief was dismissed by the superior court at a show cause hearing because the plaintiffs had failed to serve or file a summons with the complaint. A summons and amended complaint for declaratory and injunctive relief subsequently was mailed to the defendants on November 11, 1974, and filed under the same cause number on November 13, 1974. The defendants City of Seattle and Alfred Petty filed a notice of appearance on November 13, 1974. The Board admitted in its opening brief that it received copies of the summons and amended complaint on November 14, 1974.
On January 9, 1975, the superior court struck plaintiffs' summons and amended complaint for failure to obtain leave of court to amend as required by CR 15(a). The court then granted plaintiffs' leave to file an amended and supplemental complaint for declaratory and injunctive relief. This latter pleading was duly filed under the same cause number and served on the defendants.
SEPA has two provisions which limit the period of time for commencing an action to protest or challenge 'major action(s) significantly affecting the quality of the environment.' 5 RCW 43.21C.080(2) provides:
Any action to set aside, enjoin, review, or otherwise challenge any such governmental action . . . on grounds of noncompliance with the provisions of this chapter shall be commenced within sixty days from the date of filing of the notice with the department of ecology, the date of final newspaper publication, or date of mailing, if applicable, whichever is later, or be barred: Provided, however, That (1) The time period within which an action shall be commenced shall be ninety days for projects to be performed by a governmental agency or to be performed under government contract, or (2) for thermal power plant projects . . .
We must first decide whether the sixty-or ninety-day protect period under SEPA is applicable to the action taken by the Board and by the City, and secondly, whether plaintiffs' effort to protest was within the pertinent period of time.
It is clear that any possible protest as to the governmental action taken by the City and by Alfred Petty in issuing the necessary building permits must be within the 60-day protest period. They are not performing the project and have no contractual relationship with the parties involved in the Rainier Square Project.
With respect to the Board's involvement in the project, plaintiffs contend that the 90-day protest period applies because the project essentially is being 'performed under government contract.' In furtherance of this contention, plaintiffs assert that the lease did not create the typical landlord-tenant relationship because (1) UNICO will ultimately be reimbursed for the cost of construction from the University of Washington's New Building Fund, (2) the property is owned by the State, and (3) under the terms of the lease, the Board was required to give its authorization before UNICO could commence the project. As we understand plaintiffs' argument, it is, in effect, that the lease constitutes a 'government contract' between the Board and UNICO for the construction of the project.
The defendant's response is that the project essentially is a private and not a governmental endeavor and, therefore, the 60-day protest period applies.
It is a rule of construction that provisos, such as the one found in RCW 43.21C.080(2), are strictly construed and derive nothing by implication. Seattle v. Western Union Tel. Co., 21 Wash.2d 838, 850, 153 P.2d 859 (1944); Tabb v. Funk, 170 Wash. 545, 548, 17 P.2d 18 (1932). The merits of plaintiffs' argument must be considered in light of this rule.
Ground leases, I.e., those for relatively long periods of time, 6 necessarily must anticipate changing conditions and the needs of the parties over the term of the lease. Such leases not uncommonly include provisions for the construction of new improvements, contemplate removal of existing improvements, impose upon the lessee the duty to build, and give the lessor a right to approve construction plans. G. Grenert, Ground Lease Practice §§ 1.52.53 (Cal.Prac.Book No. 54 1971). The lease involved in this case provided that UNICO
covenants and agrees from time to time to study the desirability and economic necessity for the construction of new buildings and capital alterations, and to make recommendations to Lessor with reference thereto. Any such new building or capital alteration shall be undertaken by Lessee only with the prior written approval of Lessor, and when so approved and undertaken the cost thereof shall be paid from the New Building Fund . . .
The terms of the lease between UNICO and the Board are not unlike provisions found generally in leases for long periods of time. Plaintiffs cite no...
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