CITIES AND TOWNS ‑- LOCAL IMPROVEMENT DISTRICTS ‑- CREATION THEREOF TO FINANCE FALLOUT SHELTERS

CITIES AND TOWNS ‑- LOCAL IMPROVEMENT DISTRICTS ‑- CREATION THEREOF TO FINANCE FALLOUT SHELTERS.

Cities and towns have the authority to create local improvement districts for the purpose of financing the construction of community fallout shelters provided the plan therefor is first submitted to the state director of civil defense for his recommendations as to conformity with the state's plan and program for civil defense.  Counties, however, do not possess such authority.

                                                              - - - - - - - - - - - - -

                                                               November 28, 1961

Honorable Dick Taylor
State Representative, 38th District
Box 49
Mukilteo, Washington

                                                                                                                Cite as:  AGO 61-62 No. 79

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on the following question:

            "'May a local improvement district be created by a political subdivision of this state to finance the construction of a community fallout shelter?'"

            We answer your question as set forth in the analysis below.

                                                                     ANALYSIS

            Initially we assume that your reference to "political subdivisions" was meant as a general reference to counties, cities and towns only, and was not meant to include districts and other lesser political units created for limited purposes only.

            We further assume that you do not have in mind a single community fallout shelter serving the needs of all inhabitants of an individual municipal corporation, but rather, a number of such shelters, with corresponding local improvement districts, serving designated portions of the municipality.  For explanatory purposes, and as a general background of the legal considerations involved, we quote the following text from 13 McQuillin, Municipal Corporations, § 37.01, pp. 7-9:

             [[Orig. Op. Page 2]]

            "In law, generally speaking, the term 'public improvements,' as applied to municipal corporations, means improvements upon the property of the municipality which serve to further the operation of the municipal government and the interests and welfare of the public.  The term is limited to improvements which are the proper subject of police and local government regulation, and do not include private affairs or commercial enterprises.  The fact that a fee is charged for the use of a public improvement does not make the use private, since it is not essential to public use that it be absolutely free to everyone.

            "Public improvements may be either local or general in nature.  Local improvements are those made in a particular locality which result in special benefit of the real property adjoining or near by, whereas general improvements are those of general use or benefit.

            "What the particular local corporation is authorized to do in respect of public improvements depends upon the state constitution, the proper construction of the municipal charter, the statutes applicable thereto and the legislative policy of the state respecting municipal government. . . ."

            See, also,In re Western Avenue,, 93 Wash. 472, 161 Pac. 381 (1916).

            It should be stated further as a general proposition that municipal corporations (including counties as well as cities and towns) have only the powers expressly granted to them by statute, together with those powers necessarily implied from the express grant, and those essential to the accomplishment of the declared objects and purposes of the corporation, "not simply convenient but indispensable."  See,State ex rel. King County v. Superior Court,, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949); Pacific First Federal Savings and Loan Association v. Pierce County,, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947); Carpenter v. Okanogan County,, 163 Wash. 18, 299 Pac. 400 (1931);State ex rel. Wauconda Investment Co. v. Superior Court,, 68 Wash. 660, 124 Pac. 127 (1912).  See, also, AGO 57-58 No. 159 [[to Cliff Yelle, State Auditor on February 18, 1958]], a copy of which is enclosed.

            Generally speaking, any fair or reasonable doubt about the existence of a municipal power must be resolved against the municipality.  Pacific First Federal Savings and Loan Association v. Pierce County, supra,, p. 353.

            A notable exception to this strict rule exists in favor of cities of  [[Orig. Op. Page 3]] the first class.  Our supreme court has held that cities of the first class have as broad legislative powers as the state, subject only to restrictions found in the constitution or statutes of the state, or in the city's own charter.  See, AGO 61-62 No. 71 [[to Mark Litchman, State Representative on October 11, 1961]], (a copy of which is enclosed) and cases cited therein.

            The answer to your question, therefore, requires an examination of the applicable constitutional and statutory provisions.  We shall first consider the powers granted to cities and towns.  Our research discloses no express grant of authority to cities and towns specifically to construct fallout shelters, or to finance them by the method outlined in your question.  In our opinion, however, there is sufficient express authority from which those specific powers can be necessarily implied.

            RCW 35.43.040 provides in pertinent part as follows:

            "Whenever the public interest or convenience may require, the legislative authorityof any city or town may order the whole or any part of any local improvement including butnot restricted to those listed below to be constructed, reconstructed, repaired, or renewed and the planting, setting out, cultivating, maintaining, and renewing of shade or ornamental trees and shrubbery thereon; may order any and all work to be done necessary for completion thereof; and may levy and collect special assessments on property specially benefited thereby to pay the whole or any part of the expense thereof, viz:

            "(1) Alleys, avenues, boulevards, lanes, park drives, parkways, public places, public squares, public streets, their grading, regrading, planking, replanking, paving, repaving, macadamizing, remacadamizing, graveling, regraveling, piling, repiling, capping, recapping, or other improvement; . . .

            "(2) Auxiliary water systems;

            "(3) Auditoriums, field houses, gymnasiums, swimming pools, or other recreational or playground facilities or structures;

            "(4) Bridges, culverts, and trestles and approaches thereto;

             [[Orig. Op. Page 4]]

            "(5) Bulkheads and retaining walls;

            "(6) Dikes and embankments;

            "(7) Drains, sewers and sewer appurtenances which as to trunk sewers shall include as nearly as possible all the territory which can be drained through the trunk sewer and subsewers connected thereto. . . .

            "(8) Escalators or moving sidewalks together with the expense of operation and maintenance;

            "(9) Parks and playgrounds;

            "(10) Sidewalks, curbing, and crosswalks;

            "(11) Street lighting systems together with the expense of furnishing electrical energy, maintenance, and operation;

            "(12) Underground utilities transmission lines;

            "(13) Water mains, hydrants and appurtenances . . .

            "(14) Fences, culverts, syphons, or coverings or any other feasible safeguards along, in place of, or over open canals or ditches to protect the public from the hazards thereof. . . ."  (Emphasis supplied.)

            RCW 35.43.080 further provides in pertinent part as follows:

            "Every ordinance ordering a local improvement to be paid in whole or in part by assessments against the property specially benefited shall establish a local improvement district to be known as 'local improvement district No. . . .,' which shall embrace as nearly as practicable all the property specially benefited by the improvement."

            These statutes, as previously noted, contain no express grant of authority specifically to construct fallout shelters.  However, in our opinion, they must be read together with the special provisions of the state civil defense act, chapter 38.52 RCW.  RCW 38.52.010 contains the following pertinent definitions:

             [[Orig. Op. Page 5]]

            "'Civil defense' means the preparation for and the carrying out of all emergency functions, other than functions for which the military forces are primarily responsible, to minimize and repair injury and damage resulting from disasters caused by enemy attack, sabotage, or other hostile action, or by fire, flood, storm, earthquake, or other natural causes.  These functions include, without limitation, fire fighting services, police services, medical and health services, rescue, engineering, air raid warning services, communications,radiological, chemical and other special weapons defense,, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to civilian protection, together with all other activities necessary or incidental to the preparation and for carrying out of the foregoing functions.

            "'Local organization for civil defense' means an organization created in accordance with the provisions of this chapter by state or local authority to perform local civil defense functions.

            ". . .

            "'Political subdivision' means any county, city or town."  (Emphasis supplied.)

            RCW 38.52.070 provides in pertinent part as follows:

            "(1) Each political subdivision of this state is hereby authorized and directed to establish a local organization for civil defense in accordance with the state civil defense plan and program:  Provided,, That a political subdivision proposing such establishment shall submit its plan and program for civil defense to the state director of civil defense and secure his recommendations thereon in order that the local organization for civil defense may be coordinated with the plan and program of the state.  If the director's recommendations are adverse to the plan as submitted, the matter shall be referred to the council for final action.  The director of civil defense may authorize two or more political subdivisions to join in the establishment  [[Orig. Op. Page 6]] and operation of a local organization for civil defense as circumstances may warrant, in which case each political subdivision shall contribute to the cost of civil defense upon such fair and equitable basis as may be determined upon by the executive heads of the constituent subdivisions.  If in any case the executive heads cannot agree upon the proper division of cost the matter shall be referred to the council for arbitration and its decision shall be final. . . ."

            Previously existing authority for cities and towns to provide for civil defense, embodied in RCW 35.21.040 ‑ 35.21.060 (cf. chapter 24, Laws of 1943) was expressly repealed.  See, RCW 38.52.920.

            From an examination of the above statutes, and construing them together, we conclude that there is sufficient basic authority for cities and towns to construct fallout shelters, and finance them by the method proposed in your letter.  Furthermore our use of the term "fallout shelter" is not meant to be restrictive so as to suggest a limitation as to the type of shelter that may be constructed, or as to the kinds of special weapons' effects that a particular system of shelters may be designed to resist.

            We should point out however that RCW 38.52.070, supra,, contains not only a grant of authority but also a special limitation on the power of cities and towns in this regard.  The statute apparently recognizes the premise that an unsupervised local civil defense program, prompted in at least some communities because of the urgent pressure of recent world events, could well lead to a greater disaster than the program is intended to prevent.  In the case of fallout shelters, it could lead to a system of inadequately constructed, unequipped or poorly equipped shelters; or perhaps, on account of neighborhood opposition to a particular L.I.D. or for some other reason, shelters constructed in insufficient numbers or size.  A requirement of submission to and approval by a coordinating state agency provides a safeguard against a locally sponsored system which could, because of one or more of those deficiencies, turn out to be a system of individual traps in the event of an immediate threat of nuclear attack.

            Consequently, RCW 38.52.070, supra,, makes it clear that any city or town embarking upon such a program must first submit its complete plan (perhaps as an amendment or addition to an existing plan and program of civil defense) to the state civil defense director, for his preliminary determination as to conformity with the state's plan and program for civil defense, and for his recommendations.

            Subject to the qualification just stated, it is our conclusion that  [[Orig. Op. Page 7]] cities and towns may construct community fallout shelters, and create local improvement districts for the purpose of assessing the cost thereof against the property especially benefited.

            The question of whether or not a fallout shelter would constitute a special benefit to particular property, so as to justify assessment on the basis of benefit, is a fact question to be determined in each case.  See,In re Western Avenue, supra; also, In re Jones,, 52 Wn. (2d) 143, 324 P. (2d) 259 (1958).

            Turning now to the authority of counties in this regard, our answer must be in the negative.  Your question is not concerned merely with the proposition as to whether a political subdivision may construct fallout shelters.  Essentially, as we understand it, your question is directed at a particular method of financing such a program of construction.  Article VII, § 9, of the State Constitution provides as follows:

            "The legislature may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of property benefited.  For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same."

            Assuming that this section does not preclude the legislature from vesting the same power in other corporate authorities, our research discloses no statute granting that power to boards of county commissioners, expressly or by necessary implication except chapter 36.88 RCW, relative to road improvements.  RCW 35.43.040,supra,, providing general authority for the construction of local improvements is by its terms limited to cities and towns.  Therefore, a county does not have the power to finance the construction of fallout shelters by special assessments on property benefited, or to create local improvement districts for that purpose.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

R. TED BOTTIGER
Assistant Attorney General