CONSIDERATION FOR THE TRANSFER OF STATE HIGHWAY LANDS TO A COUNTY FOR A PARK

CONSIDERATION FOR THE TRANSFER OF STATE HIGHWAY LANDS TO A COUNTY FOR A PARK

The Highway Commission of the State of Washington is authorized to dispose of state lands under the control of the Highway Department which are no longer necessary for highway purposes to a county for the purpose of developing a park without monetary consideration provided the establishment of the park will be of sufficient benefit to the traveling public to justify such a non-monetary [[nonmonetary]]conveyance.

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                                                                 August 13, 1952

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 376

Attention:  Mr. H. C. Higgins, Secretary

Gentlemen:

            You stated in your recent letter that the State of Washington is the owner of certain property on Mercer Island purchased by the Highway Department for a maintenance site, which property is adjacent to Primary State Highway No. 2 and lies near the west approach to the East Channel Bridge.  You further state that because of opposition by local residents to the establishment of this type of an operation in that locality, the property has never been developed as a maintenance site.  King County now desires to secure title to this property to develop a public park.  Based upon this factual situation, your question is whether the Washington State Highway Commission has the authority by law to dispose of this state owned property to King County for development as a public park without monetary consideration.

            Our conclusion may be summarized as follows:

            The Highway Commission of the State of Washington is authorized by section 1, chapter 146, Laws of 1945, RCW 47.12.070, to dispose of state lands under the  [[Orig. Op. Page 2]] control of the Highway Department which are no longer necessary for highway purposes to a county for the purpose of developing a park without monetary consideration, provided the establishment of the park will be of sufficient benefit to the traveling public to justify such a non-monetary [[nonmonetary]]conveyance.

                                                                     ANALYSIS

            RCW 47.12.070, as derived from section 1, chapter 146, Laws of 1945, provides in part:

            "If the director deems that any land is no longer required for state highway purposes and that it is in the public interest, he may negotiate for the sale of the land to a city or county of the state.  He shall certify the agreement for the sale to the governor, with a description of the land and the terms of the sale, and the governor may execute and the secretary of state shall attest the deed and deliver it to the grantee.  * * *"

            It is further provided that if any moneys are received pursuant to the sale of said highway lands, said moneys will be deposited in the motor vehicle fund.

            Section 4, chapter 247, Laws of 1951, RCW 43.27.100, vests the former powers, authorities, functions and duties of the Director of Highways in the State Highway Commission.

            Lands for highway purposes other than those donated or granted or transferred from a municipal subdivision or the United States government are purchased with motor vehicle funds.

            This statutory authorization clothes the commission with broad discretionary powers in its negotiations for the sale of lands no longer required for highway purposes.  We believe, however, that the term "negotiation" as used therein implies that it was not the intent of the legislature to authorize the commission to give away the subject lands without something in the way of consideration being returned to the motor vehicle fund.  It would seem at the outset that if unused lands were given to a city or county for no monetary consideration it would constitute an unlawful diversion of motor vehicle funds, as such land is purchased from a definite fund provided by the motor vehicle users.  However, if the establishment of the subject park will be of benefit to the motor vehicle  [[Orig. Op. Page 3]] users in much the same way as roadside improvements, which may be constructed by the commission from motor vehicle funds pursuant to section 88, chapter 53, Laws of 1937, RCW 47.40.010, then in that event there would be consideration of an indirect nature returning to the motor vehicle users.

            It is therefore our opinion that section 1, chapter 146, Laws of 1945,supra, authorizes the Highway Commission to convey the subject property for a consideration other than that of a monetary nature and that said section grants to the Commission substantial powers in their determination of such consideration, that in the instant case if in their opinion the highway users are to be benefited by the establishment of the subject park, which benefit will provide sufficient consideration for their entering into the transaction, then they may so convey to King County for such a use.

            We would further suggest that the deed conveying the property include a reversionary clause whereby the land would revert to the State of Washington in the event the park is not established and maintained by King County.

Very truly yours,

SMITH TROY
Attorney General

PAUL SINNITT
Assistant Attorney General