CITIES AND TOWNS ‑- SURPLUS AIRPORT LAND ‑- SALE TO PORT DISTRICT ‑- DEVELOPMENT AND UTILIZATION

CITIES AND TOWNS ‑- SURPLUS AIRPORT LAND ‑- SALE TO PORT DISTRICT ‑- DEVELOPMENT AND UTILIZATION.

1. A city may sell surplus land of its municipal airport to a port district.

2. A port district has the authority to purchase such land and develop it with improvements relating to industrial and manufacturing activities.

3. There are limitations upon the authority of a port district in the development and utilization of such property.

4. It is not necessary for city authorities to determine in advance or limit the uses to which the land will be put by the port district, as a condition of the validity of the sale.

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                                                                   June 23, 1966

Honorable Don L. Talley
State Senator, 18th District
1817 Bloyd
Kelso, Washington 98626

                                                                                                                Cite as:  AGO 65-66 No. 91

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on several questions relating to the sale of surplus municipal airport property.  Your questions, which you have clarified in a subsequent conversation, are paraphrased as follows:

            1. May a city sell surplus land of its municipal airport to a port district?

            2. Does a port district have the authority to purchase such land and develop it with improvements relating to industrial and manufacturing activities?

            3. Are there limitations upon the authority of a port district in the development and utilization of such property?

            4. Is it necessary for the city authorities to determine in  [[Orig. Op. Page 2]] advance or limit the uses to which the land will be put by the port district, as a condition of the validity of the sale?

            We answer your first three questions in the affirmative, and your fourth question in the negative.

                                                                     ANALYSIS

            Because your questions relate to the respective powers of two municipal corporations, we cite at the outset the general rule that municipal corporations may exercise only those powers which have been expressly granted to them by the legislature, and those which are necessarily implied from their granted powers.  See,Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947); also,Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947).  It is axiomatic, of course, that no municipal corporation may exercise any power prohibited by the state constitution, or by any statute.  Furthermore, if a statute is susceptible to two constructions, one of which would render it unconstitutional and the other constitutional, the construction in favor of constitutionality will be adopted.  See,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944); also,Hammack v. Monroe St. Lbr. Co., 54 Wn.2d 224, 339 P.2d 684 (1959).

            Question (1):

            The authority of cities to own and operate airport property, and to dispose of it, is to be found in Title 14 of the Revised Code of Washington, under the subject of aeronautics.  (Title 35 dealing with cities and towns does not specifically mention airports or aeronautical facilities.)

            RCW 14.08.120 provides in pertinent part as follows:

            ". . . a municipality which has established or may hereafter establish airports, restricted landing areas or other air navigation facilities, or which has acquired or set apart or may hereafter acquire or set apart real property for such purpose or purposes is hereby authorized:

            ". . .

            "(5) Such municipality acting through its governing body may sell or lease any property,  [[Orig. Op. Page 3]] real or personal, acquired for airport purposes and belonging to the municipality, which, in the judgment of its governing body, may not be required for aircraft landings, aircraft takeoffs or related aeronautic purposes, in accordance with the laws of this state, or the provisions of the charter of the municipality, governing the sale or leasing of similar municipally owned property . . ."

            Under this statute it is clear that a city which owns an airport has the requisite authority to sell any of such property which is not necessary for "aircraft landings, aircraft takeoffs or related aeronautic purposes, . . ."  In other words, a city may sell surplus property of its municipal airport.  See, AGO 61-62 No. 163, a copy of which is attached.

            Question (2):

            Your second question relates to the authority of a port district to purchase and improve such land.  The purposes for which a port district may exercise its powers generally, and specific powers in aid of such purposes, are found principally in the following statutes:

            RCW 53.04.010, which provides:

            "Port districts are hereby authorized to be established in the various counties of the state for the purposes of acquisition, construction, maintenance, operation, development and regulation within the district of harbor improvements, rail or motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, or any combination of such transfer and terminal facilities, and other commercial transportation, transfer, handling, storage and terminal facilities, and industrial improvements."

            RCW 53.08.010, providing in pertinent part as follows:

            "A port district may acquire by purchase, for cash or on deferred payments for a period not exceeding ten years, or by condemnation,  [[Orig. Op. Page 4]] or both, all lands, property, property rights, leases, or easements necessary for its purposes . . ."

            RCW 53.08.020, which provides as follows:

            "A port district may construct, condemn, purchase, acquire, add to, maintain, conduct, and operate sea walls, jetties, piers, wharves, docks, boat landings, and other harbor improvements, warehouses, storehouses, elevators, grain-bins, cold storage plants, terminal icing plants, bunkers, oil tanks, ferries, canals, locks, tidal basins, bridges, subways, tramways, cableways, conveyors, administration buildings, fishing terminals, together with modern appliances and buildings for the economical handling, packaging, storing, and transporting of freight and handling of passenger traffic, rail and motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, and any combination of such transfer and terminal facilities, commercial transportation, transfer, handling, storage and terminal facilities, and improvements relating to industrial and manufacturing activities within the district, and in connection with the operation of the facilities and improvements of the district, it may perform all customary services including the handling, weighing, measuring and reconditioning of all commodities received.  A port district may also construct, condemn, purchase, acquire, add to and maintain facilities for the freezing or processing of goods, agricultural products, meats or perishable commodities.  A port district may also construct, purchase and operate belt line railways, but shall not acquire the same by condemnation."

            It is apparent from these statutes that a port district does have the authority to acquire land and improve it, and that its powers in that respect are extremely broad and comprehensive.  A port district has express statutory authority to develop land with "improvements relating to industrial and  [[Orig. Op. Page 5]] manufacturing activities within the district."  RCW 53.08.020,supra.

            Question (3):

            In answer to your third question, there are certainly limitations upon the authority of a port district, as upon any state agency or municipal corporation.  Principally, there are constitutional limitations upon the purposes for, and the manner in which, port district funds may be expended.  The purposes must be "public" and the expenditure may not be in the form of a gift or lending of credit to a private individual, association or corporation.  See, Article VII, § 1, (Amendment 14) and Article VIII, § 7, of the Washington state constitution; also,State ex rel. O'Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965).

            One example of the application of these constitutional provisions, which appears to be related to your inquiry, may be stated as follows:

            ". . . It is now generally held that a municipal corporation cannot use its funds, exert its taxing power, or loan its credit, to promote a private enterprise.  Thus, a municipal corporation cannot lawfully purchase land for the sole purpose and with the sole intent of donating it to persons and corporations intending to construct and operate manufacturing plants, in order to induce them to locate their plants within the municipal limits, . . ." 38 Am.Jur., Municipal Corporations, § 402, p. 94.

            The supreme court of this state was apparently inclined to follow a similar view with regard to leasing in the early case of Paine v. Port of Seattle, 70 Wash. 294, 126 Pac. 628, 127 Pac. 580 (1912).  In the course of its opinion, at page 322, the supreme court said:

            ". . . Perhaps if the sole purpose of acquiring the property was to lease it to an individual or corporation for private use, its acquisition and lease would be in violation of the constitutional provision cited. . . ."

             [[Orig. Op. Page 6]]

            A similar issue was presented to the court in the recent case ofHutchinson v. Port of Benton, 62 Wn.2d 451, 383 P.2d 500 (1963).  In that case the Port of Benton proposed to purchase a certain tract of land from the United States government.  The contemplated action was challenged by plaintiff and others, taxpayers, on two grounds, the first being "that the purchase is for the purpose of devoting public property unconstitutionally to an industrial development or industrial park."  The court recognized the holding ofPaine v. Port of Seattle, supra, on the question of the possible unconstitutional use of credit.  However, the court held that the issue was moot in the Hutchinson case because

            ". . . There is no transaction pending or before us for consideration other than the proposed acquisition of the 290-acre tract from the United States government to be used and developed in accordance with Laws of 1911, chapter 92, p. 412, as amended."  (The cited statute merely constitutes authority for the port district to acquire land for its own use.)

            Question (4):

            Thus, in answer to your fourth and final question, it is not incumbent upon the city, in the sale of its surplus property to the port district, to inquire into and restrict the potential uses to which the land may be put by the port district, nor to impose express limitations upon the use of such land by the port district after its acquisition.  The law itself supplies such limitations, and the governing body of the port district is presumably as aware of them as the city.  In the absence of clear knowledge to the contrary, a city may presume that the port district intends to purchase such land and develop it for purposes that are within its powers.  See,Hutchinson v. Port of Benton, supra.  Even knowledge that the port district intends to construct buildings upon the land and lease them to others would not necessarily invalidate that presumption.  It is generally recognized that a municipality has the power to construct buildings for its own needs, and large enough to accommodate its reasonably anticipated future needs, and pending such need lease the surplus space to private parties.  See, AGO 1947-48 No. 90b; also, AGO 53-55 No. 339, copies enclosed.

            Therefore, in answer to your questions, a city may sell to a port district its surplus airport property; a port district  [[Orig. Op. Page 7]] may purchase and develop such property and make improvements thereon.  There are restrictions upon the uses to which the port district may put such property, and the expenditure of funds therefor; however, a city selling property to a port district under the general powers of each respectively to sell and purchase it, need not be concerned with any potential unauthorized use to which the port district may put the property, as long as there is any reasonable basis for exercising the presumption that the port district will use it for authorized purposes.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General