CITIES & TOWNS ‑- OFF-STREET PARKING ‑- RIGHT OF MUNICIPALITIES TO ENTER INTO FIELD

CITIES & TOWNS ‑- OFF-STREET PARKING ‑- RIGHT OF MUNICIPALITIES TO ENTER INTO FIELD

 A city of any class has the right to enter into the field of off-street parking under the provisions of Article XI, section 11, of the Washington constitution.

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                                                                    May 8, 1956 

Honorable Eugene D. Ivy
State Senator
Fourteenth District
215 Miller Building
Yakima, Washington                                                                                                              Cite as:  AGO 55-57 No. 263

 Dear Sir:

             In your letter, previously acknowledged, you requested our opinion on the following question:

             Does a municipality have the power to establish off-street parking facilities in the absence of a special statute conferring such power?

             Our answer is in the affirmative.

                                                                      ANALYSIS

             We base our answer primarily on the provision found in Article XI, § 11, of our state constitution, which provides as follows:

             "Any county, city, town or township may make and enforce within its limits all such localpolice, sanitary and other regulations as are not in conflict with general laws."  (Emphasis supplied.)

              [[Orig. Op. Page 2]]

            This provision of the constitution gives citiespolice power.

             We should first state that we are cognizant of the fact that for the last four or five sessions of the legislature attempts have been made to authorize legislation to allow cities and towns to enter into such business; however, we feel that failure to accomplish the same does not affect this opinion.

            Our state supreme court, in the case ofKimmel v. Spokane, 7 Wn. (2d) 372, cited the fact that municipalities have broad police power.  The case involved the installation of parking meters on streets.  The court held that the city has power to regulate traffic on the public streets in the manner provided by ordinance.  We quote from page 376 of the opinion:

             "On the other hand, the power of the state and of the municipalities to regulate the parking of cars on the streets and highways cannot be doubted. . . ."

             The furnishing of off-street parking is a method for regulating the parking of cars on the streets and controlling traffic, which is in the interest of the public.

             This state has had no case involving off-street parking, so we must look for authority to other states.  There is a long line of cases directly in point from other states, among which is the case ofMcNichols v. Denver, 123 Colo. 132, 230 P. (2d) 591, which gives authority for the proposition that a city does have such power as an incident to the proper exercise of police powers of a city.  Another case to which we would call your attention is the case of Miller v. City of Georgetown, 301 Ky. 241, 191 S.W. (2d) 403.  This case is particularly significant because although there was a legislative act enabling municipalities to establish off-street parking facilities, this act applied to first and second class cities only, and the case concerned the power of a city of the fourth class to establish such a facility.  The court held that the enabling statute affecting first and second class cities did not alter the power of a fourth class city to acquire land for a parking facility under the more general statute authorizing such a city to purchase or condemn realty needed for  [[Orig. Op. Page 3]] municipal purposes.  We can say, therefore, that this case is a leading case on this subject and holds in favor of the municipal establishment of an off-street parking facility in circumstances where it might reasonably be argued that because there had been a specific enactment of the legislature authorizing first and second class cities only that thereby there was the implication that cities of other classes did not have such authority.  It seems reasonable to conclude that in Washington the general powers conferred upon a city are sufficient and an off-street parking facility is nothing more than an implementation of the police power of the city and for a public purpose.  The case above cited states as follows:

             "It is common knowledge that the great increase in recent years of automobiles has created a situation even in smaller cities which is fraught with danger to persons using the streets and causes inconvenience to residents of the city."

             Further, the case states:

             "The primary function of a municipality is to promote the safety, convenience, comfort and common welfare of its citizens by establishing and maintaining those things which tend to do so and by regulating or prohibiting those things which are harmful.

             ". . .

             "The acquisition and use of land by fourth class city for automobile parking lot was for a 'municipal purpose' within statute authorizing fourth class cities to purchase or condemn realty needed for municipal purposes."

             We are, therefore, in the position where, from our constitution giving police power, and from the Kimmel case, supra, as well as from cases directly in point of other states, we feel that cities  [[Orig. Op. Page 4]] have the authority to go into the off-street parking field as a proper regulation under their police power authority.

             We further believe that under the provisions of RCW 8.12.030, which sets forth the particular purposes for which cities may condemn land and property, there would be a question whether cities would have the right to condemn property for off-street parking facilities.  We are cognizant of the provisions of this statute which say in part "for any other public use."  It may very well be that this condemnation statute is broad enough to include condemnation of property for off-street parking facilities because it would be a public use.  Note the language of theMiller case, supra, wherein the court held the use to be a municipal purpose, or in effect, a public use.  We do, however, believe that statutory enactment should be had in order to specifically give cities this power so that any doubt may be obviated.

             We therefore conclude that under the cited laws above given, any city or any class has the power to enter into the establishment of off-street parking facilities under Article XI, § 11, of our constitution.

 Very truly yours,
 DON EASTVOLD
Attorney General 

BERNARD G. LONCTOT
Chief Assistant Attorney General