Freeman v. State

• Decision Date: 12 September 2013
• Docket Number: No. 87267–8.,87267–8.
• Court: Washington Supreme Court
• Parties: Kemper FREEMAN; Jim Horn; Steve Stivala; Ken Collins; Michael Dunmire; Sarah Rindlaub; Al Deatley; Jim Coles; Bryan Boehm; Emory Bundy; Roger Bell; Eastside Transportation Association, a Washington nonprofit corporation; and Mark Anderson, Appellants/Cross–Respondents, v. STATE of Washington; Christine O. Gregoire, Governor; and PAULA Hammond, Secretary, Department of Transportation, Respondents, Central Puget Sound Transportation District, Respondent–Intervenor/ Cross–Appellant.

178 Wash.2d 387

309 P.3d 437

Kemper FREEMAN; Jim Horn; Steve Stivala; Ken Collins; Michael Dunmire; Sarah Rindlaub; Al Deatley; Jim Coles; Bryan Boehm; Emory Bundy; Roger Bell; Eastside Transportation Association, a Washington nonprofit corporation; and Mark Anderson, Appellants/Cross–Respondents,

v.STATE of Washington; Christine O. Gregoire, Governor; and PAULA Hammond, Secretary, Department of Transportation, Respondents,Central Puget Sound Transportation District, Respondent–Intervenor/ Cross–Appellant.

No. 87267–8.

Supreme Court of Washington,

En Banc.

Argued Feb. 19, 2013.

Decided Sept. 12, 2013.

Bryce E. Brown Jr., Attorney at Law, Olympia, WA, for Respondent.

Philip Albert Talmadge, Sidney Charlotte Tribe, Talmadge/Fitzpatrick, Tukwila, WA, George E. Kargianis, Law Offices of George Kargianis, Seattle, WA, for Appellant/Cross–Respondent.

Matthew J. Segal, Paul J. Lawrence, Jessica Anne Skelton, Pacifica Law Group LLP, Desmond Leoron Brown, Sound Transit Union Station, Seattle, WA, for Respondent Intervenors.

Stephen Joel Crane, Crane Dunham PLLC, Seattle, WA, amicus counsel for Haney Truck Line, LLC.

Lisabeth R. Belden, Law Office of Lisabeth R Belden, Seattle, WA, amicus counsel for Save Mi Sov.

MADSEN, C.J.

[178 Wash.2d 390]¶ 1 The Washington State Department of Transportation (WSDOT) and the Central Puget Sound Regional Transit Authority (Sound Transit) entered into an agreement that would lease a portion of Interstate 90 (I–90) to Sound Transit for light rail. As consideration, Sound Transit agreed to pay an amount equal to the State's contribution to construct the center lanes and the value of a 40 year lease. Sound Transit also agreed to advance the cost of replacing the center two lanes, credited toward its lease. The appellants contend this lease violates article II, section 40 of the Washington Constitution and RCW 47.12.120. We hold that the lease does not violate article II, section 40 and RCW 47.12.120, affirm the trial court's summary judgment order in favor of the respondents, and deny the appellants' request for attorney fees.

FACTS AND PROCEDURAL HISTORY

¶ 2 Interstate 90 (I–90) is a state highway. The portion in dispute extends over Lake Washington, connecting Seattle, Mercer Island, and Bellevue. It consists of eight motor vehicle lanes, including three general purpose lanes in each direction and two reversible high occupancy vehicle (HOV) lanes in the center.

¶ 3 In 1976, several parties executed a “Memorandum of Agreement” (MOA) resulting in the present configuration of I–90. These parties included King County, Seattle, Mercer Island, Bellevue, the municipality of Metropolitan Seattle, and the Washington State Highway Commission. The parties to the MOA declared that I–90 would have no more than eight lanes and that two of the lanes would be designed for and permanently committed to transit use. I–90 was to be designed so that “conversion of all or part of the transit roadway to fixed guideway is possible.” Clerk's Papers (CP) at 1017. The construction relied in part on federal funding, with the United States secretary of transportation issuing approval in 1978 upon the express condition that “public transportation shall permanently have priority in the use of the center lanes.” Id. at 1031.

¶ 4 From 1998 to 2004, Sound Transit and WSDOT engaged in planning and review regarding transit and HOV operation over Lake Washington. Several plans were considered, with plan “R–8A” being the preferred alternative. R–8A included restriping and adding two HOV lanes to the outer lanes, new HOV on and off ramps on Mercer Island, and improvements to HOV access at Bellevue Way, while retaining the existing reversible center lanes.

¶ 5 In 2004, the signatories of the 1976 MOA amended the MOA to state that the “ultimate configuration” of I–90 was high capacity transit in the center lanes and HOV lanes in the outer roadways. Id. at 1033. High capacity transit was defined to include light rail. The United States Department of Transportation Federal Highway Administration also selected R–8A as the preferred alternative because it would “accommodate the ultimate configuration of I–90 (High Capacity Transit in the center lanes),” among other reasons. Id. at 1432.

¶ 6 In 2008, voters approved a plan to facilitate light rail travel from Seattle, over Mercer Island, and into Bellevue the east link). In 2009, the legislature budgeted $300,000 from the motor vehicle fund (MVF) for an appraisal of the center HOV lanes, which would be used for light rail. This appraisal was at issue in Freeman v. Gregoire, 171 Wash.2d 316, 323, 256 P.3d 264 (2011)( Freeman I ). There, Freeman sought a writ of mandamus to bar WSDOT from converting the center lanes to light rail and to prevent MVF money from being expended for the lane valuation. Id. We denied the writ because we found there was no mandatory duty for WSDOT to transfer the center lanes and because the valuation was a lawful expenditure for a highway purpose. Id. at 331, 256 P.3d 264.

¶ 7 Following the appraisal, WSDOT and Sound Transit negotiated a term sheet stating that Sound Transit would receive a 40 year lease of the air space over the center lanes. In exchange, Sound Transit would pay an amount equal to the State's share of the cost of the center roadway investment and the fair market rental value of the lanes as determined by the appraisal. The federal highway administration confirmed that the federal funds previously expended on I–90 need not be repaid if the lanes were used for light rail.

¶ 8 In 2011, WSDOT and Sound Transit signed a final “Umbrella Agreement” for the lease of the center lanes. CP at 1380. Under the agreement, Sound Transit would pay the State's 14.2 percent share of the cost of center roadway improvements (the two center lanes, the access and exit ramps, and other improvements) and the value of a 40 year lease, with an option to renew for an additional 35 years. Sound Transit also agreed to advance the amount needed to construct the replacement outer HOV lanes, which would be credited against the amount owed under the lease. The agreement states that the center lanes will not be “presently needed” when the new HOV lanes are open and that possession or control will not be transferred to Sound Transit until after the replacement HOV lanes are constructed and open to traffic, and other obligations are satisfied. Id. at 1383.

[178 Wash.2d 393]¶ 9 In November 2011, Washington voters rejected an initiative that would have prohibited WSDOT from transferring or using the center lanes for the east link light rail. Also that month, the federal transit administration issued a statement that the National Environmental Policy Act of 1969 (42 U.S.C. § 4321) requirements had been satisfied. The federal highway administration also issued a decision stating that because the center lanes will not be converted until after HOV lanes are added, “[t]here will be no net loss of HOV lanes.” Id. at 1573.

¶ 10 The appellants filed the present challenge to the lease agreement seeking declaratory relief and a writ of mandamus in Kittitas County Superior Court. Sound Transit intervened. All parties filed cross motions for summary judgment. The trial court granted summary judgment in favor of WSDOT and Sound Transit.

ANALYSIS

¶ 11 At issue is whether the lease between WSDOT and Sound Transit violates article II, section 40 and RCW 47.12.120. This court reviews the trial court's summary judgment order de novo. Dowler v. Clover Park Sch. Dist. No. 400, 172 Wash.2d 471, 484, 258 P.3d 676 (2011). “A summary judgment will be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id.

1. Article II, Section 40

¶ 12 Article II, section 40 requires that the MVF be used for highway purposes. See State ex rel. O'Connell v. Slavin, 75 Wash.2d 554, 559, 452 P.2d 943 (1969). The relevant portion of article II, section 40 states:

All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes. Such highway purposes shall be construed to include the following:

(a) The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;

(b) The construction, reconstruction, maintenance, repair, and betterment of public highways, county roads, bridges and city streets; including the cost and expense of (1) acquisition of rights-of-way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the state of public highways, (4) operation of movable span bridges, (5) operation of ferries which are a part of any public highway, county road, or city street.

¶ 13 Here, the parties do not dispute that light rail is a nonhighway purpose. However, they disagree as to whether the MVF is implicated, in violation of the antidiversionary policy of article II, section 40 in the lease of lands pursuant to RCW 47.12.120. The relevant portion of RCW 47.12.120 provides:

The department may rent or lease any lands, improvements, or air space above or below any lands that are held for highway purposes but are not presently needed. The rental or lease:

(1) Must be upon such terms and conditions as the department may determine.

¶ 14 The appellants argue that article II, section 40 requires that highway facilities built and maintained using the MVF must continue to be used for highway purposes until “not presently needed” under RCW 47.12.120. In effect, the appellants suggest there is a constitutional mandate that highways constructed with the MVF continue to be used as highways. The appellants rely in part on O'Connell, 75...