CITIES AND TOWNS ‑- THIRD CLASS ‑- SIDEWALKS ‑- FORMATION OF LOCAL IMPROVEMENT DISTRICT FOR CONSTRUCTION OF SIDEWALKS ON SHOULDER OF STATE HIGHWAY WITHIN CITY LIMITS ‑- ASSESSMENT OF COSTS AGAINST...

CITIES AND TOWNS ‑- THIRD CLASS ‑- SIDEWALKS ‑- FORMATION OF LOCAL IMPROVEMENT DISTRICT FOR CONSTRUCTION OF SIDEWALKS ON SHOULDER OF STATE HIGHWAY WITHIN CITY LIMITS ‑- ASSESSMENT OF COSTS AGAINST ABUTTING PROPERTY OWNERS.

A third class city has the authority within its city limits to form a local improvement district for construction of sidewalks on the road shoulder of a state highway right of way and assess costs against abutting property owners.

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                                                                    July 13, 1966

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201

                                                                                                                Cite as:  AGO 65-66 No. 93

Dear Sir:

            By letter previously acknowledged you have asked the opinion of this office on the following question:

            Does a third class city have the authority to form a local improvement district for the construction of sidewalks on the road shoulder of a state highway right of way, assessing the abutting property for the costs, the state highway being within the city limits?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            It should be stated at the outset that, as a general proposition, municipal corporations 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 purposes and objects of the municipality.  State ex rel. Port of Seattle v. Sup'r Court 93 Wash. 267, 160 Pac. 755 (1916);Aberdeen v. National Surety Co. 151 Wash. 55, 276 Pac. 62 (1929);Christie v. The Port of Olympia 27 Wn.2d 534, 179 P.2d 294 (1947).

            The answer to your question therefore requires an examination  [[Orig. Op. Page 2]] of the applicable statutory provisions.

            RCW 35.24.290 provides in part as follows:

            "The city council of each third class city shall have power:

            "(3) To establish, build and repair bridges, to establish, lay out, alter, keep open, open, widen, vacate, improve, and repair streets, sidewalks, alleys, squares and other public highways and places within the city, and to drain, sprinkle and light the same; to remove all obstructions therefrom; to establish and reestablish the grades thereof; to grade, plank, pave, macadamize, gravel and curb the same, in whole or in part; to construct gutters, culverts, sidewalks and crosswalks therein or upon any part thereof; to cultivate and maintain parking strips therein, and generally to manage and control all such highways and places; . . ."

            RCW 35.43.040 provides in pertinent part as follows:

            "Whenever the public interest or convenience may require, the legislative authority of any city or town may order the whole or any part of any local improvement including but not restricted to those listed below to be constructed, reconstructed, repaired, or renewed and the planting, setting out, cultivating, maintaining, and the 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 benefitted thereby to pay the whole or any part of the expense thereof, viz:

            "(10) Sidewalks, curbing, and crosswalks;"

            Other provisions of chapter 35.43 RCW relate to the procedures involved in the formation of a local improvement district.

             [[Orig. Op. Page 3]]

            Chapters 35.68 through 35.70 RCW provide further and supplemental authority for the construction or reconstruction of sidewalks on public streets in the various classes of cities.

            It is apparent therefore that a third class city does have statutory authority to establish local improvement districts for the construction of sidewalks and the assessment of costs against the property specially benefited thereby.  The remaining question is whether the city may do so when the proposed sidewalks are to be constructed on the road shoulder of a state highway right of way.

            RCW 47.24.010 provides in part as follows:

            "The state highway commission shall determine what streets, together with bridges thereon and wharves necessary for use for ferriage of motor vehicle traffic in connection with such streets, if any, in any incorporated cities and towns shall form a part of the route of state highways and between the first and 15th days of July on any year the state highway commission shall certify to the state auditor and to the clerk of each city or town, by brief description, the streets, together with the bridges thereon and wharves, if any, in such city or town which are designated as forming a part of the route of any state highway; and all such streets, including curbs and gutters and street intersections and such bridges and wharves, shall thereafter be a part of the state highway system and as such shall be constructed and maintained by the state highway commission from any state funds available therefor: . . ."

            RCW 47.24.020 provides in part:

            "The jurisdiction, control and duty of the state and city or town with respect to such streets shall be as follows:

            "(2) The city or town shall exercise full  [[Orig. Op. Page 4]] responsibility for and control over any such street beyond the curbs and if no curb is installed, beyond that portion of the highway used for highway purposes: . . ."

            It is apparent from a reading of these statutes that a city or town has full control over that part of a state highway right of way, within its limits, which is not being used for highway purposes.

            Therefore, we conclude that a third class city has full authority to form a local improvement district for the construction of sidewalks on such highway right of way and to assess the abutting property for the costs of such improvements.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General