CONSTRUCTION OF WEST SEATTLE BRIDGE

INTERLOCAL COOPERATION ACT ‑- ROADS AND BRIDGES ‑- CITY OF SEATTLE ‑- STATE HIGHWAY COMMISSION ‑- KING COUNTY ‑- PORT OF SEATTLE ‑- METROPOLITAN SEATTLE (Metro) ‑- CONSTRUCTION OF WEST SEATTLE BRIDGE

The City of Seattle, the State Highway Commission, King County, the Port of Seattle, and, to a limited extent, the Municipality of Metropolitan Seattle (Metro) may form a joint venture under the interlocal cooperation act (chapter 39.34 RCW) for the construction of an improved West Seattle bridge.

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                                                                December 3, 1976

Honorable Al Henry
State Senator, 17th District
Rio Vista
White Salmon, Washington 98672                                                                                                               Cite as:  AGLO 1976 No. 74

Dear Sir:

            By recent letter you have advised us of a proposal to provide ". . . an improved high level crossing of the Duwamish River Estuary to West Seattle in the vicinity of Harbor Island . . ."1/  by means of a joint venture, under the interlocal cooperation act (chapter 39.34 RCW), involving participation by the following designated public agencies:

            1.         The City of Seattle;

            2.         The State Highway Commission;

            3.         King County;

            4.         The Port of Seattle; and

            5.         The Municipality of Metropolitan Seattle (Metro).

            You have then asked for our opinion on the following questions:

            "1) Can the forementioned agencies enter into such an agreement pursuant to RCW 39.34 ‑ The Interlocal Cooperation Act?

            "2) Can the joint board exercise the collective powers of member agencies, allowing each agency to make maximum contribution to the extent of its authority?

             [[Orig. Op. Page 2]]

            "3) Does the Interlocal Cooperation Act provide sufficient latitude to allow for a functional agreement in two phases:

            "1) organizational "2) financial?"

            We respond to these questions in the manner set forth in the following analysis.

                                                                     ANALYSIS

            The interlocal cooperation act, as originally enacted in 1967,2/ is basically designed to permit designated public agencies possessing given powers to exercise those powers jointly pursuant to the terms of a formal, written, agreement between them.  Accord, § 1 of the act, now codified as RCW 39.34.010, wherein the purpose of the law was expressed as follows:

            "It is the purpose of this chapter to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development of local communities."

            In implementation of this declared purpose, RCW 39.34.030 provides as follows:

            "(1) Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States permit such joint exercise or enjoyment.  Any agency of the state government when acting jointly with any public agency may exercise and enjoy  [[Orig. Op. Page 3]] all of the powers, privileges and authority conferred by this chapter upon a public agency.

            "(2) Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter.  Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force.

            "(3) Any such agreement shall specify the following:

            "(a) Its duration;

            "(b) The precise organization, composition and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto, provided such entity may be legally created.  Such entity may include a nonprofit corporation whose membership is limited solely to the participating public agencies and the funds of any such corporation shall be subject to audit in the manner provided by law for the auditing of public funds;

            "(c) Its purpose or purposes;

            "(d) The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor;

            "(e) The permissible method or methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination;

            "(f) Any other necessary and proper matters.

            "(4) In the event that the agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, the agreement shall, in addition to items (a), (c), (d), (e) and (f) enumerated in subdivision (3) hereof, contain the following:

             [[Orig. Op. Page 4]]

            "(a) Provision for an administrator or a joint board responsible for administering the joint or cooperative undertaking.  In the case of a joint board, public agencies party to the agreement shall be represented;

            "(b) The manner of acquiring, holding and disposing of real and personal property used in the joint or cooperative undertaking. Any joint board is authorized to establish a special fund with a state, county, city, or district treasurer servicing an involved public agency designated 'Operating fund of ‑‑‑‑‑‑‑‑joint board'.

            "(5) No agreement made pursuant to this chapter shall relieve any public agency of any obligation or responsibility imposed upon it by law except that to the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made hereunder, said performance may be offered in satisfaction of the obligation or responsibility.

            "(6) Financing of joint projects by agreement shall be as provided by law."

            In addition, RCW 39.34.080 provides that:

            "Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform:  Provided, That such contract shall be authorized by the governing body of each party to the contract.  Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."

            Most certainly, each of the governmental agencies referred to in your letter now come within the scope of the term "public agency" for the purposes of the interlocal cooperation act.  See, RCW 39.34.020, as most recently amended by § 1, chapter 115, Laws of 1975, 1st Ex. Sess., which reads as follows:

             [[Orig. Op. Page 5]]

            "For the purposes of this chapter, the term 'public agency' shall mean anycity, town,county, public utility district, irrigation district,port district, fire protection district, school district, air pollution control authority, rural county library districts, intercounty rural library districts, public hospital districts, regional planning agency created by any combination of county and city governments, health department or district, weed control district, county transit authority, Indian tribe recognized as such by the federal government, or metropolitan municipal corporation of this state; any agency of the state government or of the United States; and any political subdivision of another state.

            "The term 'state' shall mean a state of the United States."  (Emphasis supplied.)

            In addition, it seems clear from RCW 39.34.030, supra, that the use of a joint board, as a separate operational entity such as is contemplated by your second question, is authorized by that statute.  Likewise, although we have not been provided with the text of any specific contract forms, it would also appear to us that this same statute is sufficiently broad in scope to permit the type of contractual arrangement that seems to be envisioned by your third question as above stated.  Therefore, to the extent that your first question can be answered in the affirmative a similar answer may be given to your second and third questions as well.

            In responding to this question we must at the outset observe once again that the interlocal cooperation act does not purport to vest any substantive powers in agencies which use its provisions.  Thus, even though all of the governmental agencies referred to in your letter are "public agencies" for the purposes of the interlocal cooperation act because of their specific inclusion within the definition of that term as set forth in RCW 39.34.030,supra, there is another element which must also be present in order to permit the law to be used in any joint venture such as, in this case, the construction of ". . . an improved high level crossing of the Duwamish River . . ."; i.e., a bridge.  Perhaps the simplest way to identify that additional element is through a reference to an earlier opinion of this office which also involved a proposed joint venture, under the interlocal cooperation act, for the construction of a bridge.

             [[Orig. Op. Page 6]]

            On September 26, 1967, shortly after the law became effective, we wrote a letter opinion to the prosecuting attorney of Benton county (a copy of which is enclosed herewith for your immediate reference) with regard to the ability of Benton and Franklin counties, along with the cities of Kennewick and Pasco, to use it as a means of jointly constructing a bridge over the Columbia River.  Even though, as in the instant case, we there had no difficulty in finding that all of the governmental entities involved constituted "public agencies" we nevertheless were compelled to answer in the negative because of the lack of authority of a city to construct or maintain a bridge located outside of its own territorial limits.  The reason for this conclusion, as explained on pages 2 and 3 of our opinion, was as follows:

            "In order to conclude that a city is now able to participate with a county in the maintenance of a bridge lying outside the city limits, it would be necessary to find in the 1967 act a new legislative grant of such power.  However, chapter 239, Laws of 1967, does not purport to supply any such new power to a local government agency.  This new statute merely grants to public agencies the power to exercise jointly with each other any power that each could exercise alone.

            "The statutory language of chapter 239, Laws of 1967, is indicative of the legislative intent not to increase the substantive powers of local governmental units, but rather simply to allow them to jointly exercise their existing powers.  Section 13/ of the act provides that:

            "'It is the purpose of this act to permit local governmental units to make the most efficient use oftheir powers by enabling them to cooperate with other localities . . .'  (Emphasis supplied)

            "The language emphasized contemplates the existence of a corresponding power in each of the local governments, separate and apart from any power conferred by the 1967 act.  This premise is further supported by the language in § 4(1),4/ which provides:

             [[Orig. Op. Page 7]]

            "'Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority,. . .'  (Emphasis supplied)

            "Note also § 75/ which authorizes a public agency, pursuing a joint undertaking under chapter 239, Laws of 1967, to supply the joint enterprise by 'providing such personnel or services therefor as may be within its legal power to furnish.'  Probably the most convincing language in support of our present conclusion is contained in § 96/ which provides that:

            "'Any one or more public agencies may contract with any one or more other public agencies or perform any governmental service, activity, or undertakingwhich each public agency entering into the contract is authorized by law to perform: . . .'  (Emphasis supplied)

            "It will be noted that in all of the abovequoted language there is reference to existing powers of the individual public agencies, and no attempt to expand those powers."

            In short, in order for the interlocal cooperation act to be used in connection with any given public work or project it is not only necessary that each of the governmental bodies participating in the joint venture be "public agencies" as defined in RCW 39.34.020, supra.  In addition, it is also required that each of those agencies be independently vested with the legal authority to do, alone, whatever it would be called upon to do under the contemplated interlocal agreement as its contribution to that joint venture.

            In the present case, of course, there is clearly no territorial problem such as concerned us in the above described 1967 opinion ‑ for the proposed new West Seattle bridge would be situated well within the exterior boundaries of all  [[Orig. Op. Page 8]] five of the anticipated participants.  Thus, the question simply becomes one of the legal authority of each (independent of the interlocal cooperation act) to do, within its boundaries, that which it would be called upon to do under the agreement.

            The City of Seattle:

            The authority of this first of the proposed participants in the joint venture with which you are concerned is, perhaps, the clearest of all.  The city of Seattle undoubtedly has the legal authority to construct a bridge over the Duwamish River in the vicinity of Harbor Island ‑ as all of the area involved is well wihin the city limits.  Moreover, as indicated earlier, the present West Seattle bridge is a part of the Seattle city street system and accordingly the city may expend its forward thrust bond funds, its city street funds and urban arterial funds for construction of the new, replacement, bridge.7/   The State Highway Commission:

            Although the West Seattle freeway, including the West Seattle bridge, is not on the state highway system the state highway commission is nonetheless also vested with powers that justify its participation in the proposed interlocal agreement.  RCW 47.04.060 authorizes the highway commission to administer federal aid highway grants including grants for the construction of city streets and bridges.  For example, in the current biennium, the legislature has appropriated over $68,000,000 to the highway commission for the location, design, right of way, construction of city streets, county roads and other nonstate highways, all of which is to be reimbursed from federal and local funds.8/   To the extent that federal aid highway funds may be obtained for any part of the construction of the bridge, the highway commission may also be directly involved in the planning of the facility and, accordingly, would be a proper party to an interlocal cooperation agreement for that purpose as well ‑ although, of course, if a determination is subsequently made that the commission will not administer either a design or construction contract financed by federal aid highway funds its participation on that basis would have to terminate.

             [[Orig. Op. Page 9]]

            Secondly, the highway commission will in any event be involved in the planning and construction of the connections from the proposed bridge and city freeway facility to SR 99, a state highway ‑ although the extent of the commission's allowable participation in that phase of the project will depend upon the appropriate determinations made by it pursuant to RCW 47.28.140 as to the benefits to the state highway (SR 99) which will result from the construction of the connections to the freeway and bridge.

            In summary, the foregoing authorities would, in our opinion, justify participation by the highway commission in the interlocal agreement contemplated by your inquiry.  The extent of permissible participation by the commission in the cost of the facility, however, is an independent question and essentially is beyond the scope of this opinion.9/

            King County:

            Relevant statutes authorize a county to expend county road funds for the construction of a bridge within a city only where the bridge is essential to the continuation of the county road system.  See, RCW 36.75.200.  The West Seattle bridge and the entire West Seattle freeway facility, however, are wholly within the city of Seattle and do not directly connect with any county road.

            In addition, the general authority for counties to design and construct roads, as set forth in chapters 36.75, 36.81 and 36.82 RCW, does not authorize counties to participate in the design, construction or financing of city streets or bridges and RCW 36.82.070 expressly limits the expenditure of county road funds to county road purposes.  A county road is defined by RCW 36.75.010 as

            ". . . every public highway or part thereof, outside the limits of incorporated cities and towns and which has not been designated as a state highway;"

             [[Orig. Op. Page 10]]

            Thus, if it were not for the fact that King county (unlike any other county in our state) has qualified to function as a "home rule" county under Article XI, § 4 (Amendment 21) of our state constitution, we would be compelled to indicate a contrary, negative, answer to your question insofar as this proposed participant in the joint venture at issue is concerned.  Moreover, even though King county is such a county the foregoing statutory limitations upon the use of county road funds are applicable to it for the reason that even such a county is, in the words of Article XI, § 4, supra, ". . . subject to the Constitution and laws of this state, . . ."  But because it is a home rule county we believe that this particular county may, nevertheless, participate in the proposed project with other legally available funds if its legislative authority (the county council) elects to authorize such participation through the passage of appropriate local ordinances.  The rule, as explained in our opinion of October 7, 1971, to the prosecuting attorney of King county, copy enclosed, is the same as pertains to charter cities under Article XI, § 10 of the constitution; i.e., that such municipalities

            ". . . possess the same legislative authority within their territorial jurisdiction as is possessed by our state legislature itself ‑ subject only to subordination to conflicting acts of the legislature or conflicting provisions in our state constitution.  See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein. . . ."

            The Port of Seattle:

            In order for this municipality to participate in a proposed joint venture such as this the project would have to bear some demonstrable relationship to other authorized port district activities.  In this case, however, that relationship would seem to us to exist because of the particular location here contemplated.  See, RCW 53.08.020 which expressly includes bridges among the types of facilities which a port district may construct.10/

             [[Orig. Op. Page 11]]

            In addition, RCW 53.08.060 provides that a port district

            ". . . may improve navigable and nonnavigable waters of the United States and the state of Washington within the district; create and improve for harbor purposes new waterways within the district; and regulate and control all such waters and all natural or artificial waterways within the district (waterways of commercial waterway districts excepted), and remove obstructions therefrom, and straighten, widen, deepen, and otherwise improve any water, watercourses, bays, lakes or streams, whether navigable or otherwise, flowing through or located within the district."

            In the instant case there would seem to be no question but that the replacement of the existing West Seattle drawbridge with a new, high rise, crossing would improve the navigability of the underlying waterway and enhance access to adjacent port facilities.

            Metro:

            The West Seattle bridge is, of course, also within the  [[Orig. Op. Page 12]] boundaries of this municipality.  See, RCW 35.58.040.  In addition, we note that Metro has been authorized by its voters, in accordance with RCW 35.58.100, to perform the function of metropolitan public transportation and, in fact, it is presently doing so through the operation of what is now basically a county-wide trolley and bus system.  This, moreover, is completely consistent with the powers of a metropolitan municipal corporation in the area of public transportation as set forth in RCW 35.58.240.  Bearing that fact in mind we note the following significant provisions of RCW 47.52.090:

            "The highway authorities of the state, counties, incorporated cities and towns, and municipal corporations owning or operating an urban public transportation system are authorized to enter into agreements with each other, or with the federal government, respecting the financing, planning, establishment, improvement, construction, maintenance, use, regulation, or vacation of limited access facilities in their respective jurisdictions to facilitate the purposes of this chapter.  Any such agreement may provide for the exclusive or nonexclusive use of a portion of such facility by street cars, trains or other vehicles forming a part of an urban public transportation system and for the erection, construction and maintenance thereon of structures and facilities of such a system including facilities for the receipt and discharge of passengers: . . ."

            RCW 47.04.082 defines "urban public transportation system" as follows:

            "As used in this act the term 'urban public transportation system' shall mean a system for the public transportation of persons or property by buses, street cars, trains, electric trolley coaches, other public transit vehicles, or any combination thereof operating in or through predominantly urban areas and owned and operated by the state, any city or county or any municipal corporation of the state, including all structures, facilities, vehicles and other property rights and interest forming a part of such a system."

             [[Orig. Op. Page 13]]

            Also to be noted is RCW 47.04.083 which declares that:

            "The separate and uncoordinated development of public highways and urban public transportation systems is wasteful of this state's natural and financial resources.  It is the public policy of this state to encourage wherever feasible the joint planning, construction and maintenance of public highways and urban public transportation systems serving common geographical areas as joint use facilities.  To this end the legislature declares it to be a highway purpose to use motor vehicle funds, city and town street funds or county road funds to pay the full proportionate highway, street or road share of the costs of design, right of way acquisition, construction and maintenance of any highway, street or road to be used jointly with an urban public transportation system."

            Thus, the declared policy of our state is one which strongly encourages the development of joint highway and public transportation facilities.  In this case, however, participation in the bridge project must be limited to those costs reasonably related to the construction of public transportation facilities such as any rail or fixed guideway system or exclusive bus lanes which might be incorporated into the bridge.  Metro, in other words, is not authorized to participate in costs related solely to those portions of the bridge forming a part of the city street roadways (even though buses may incidentally use such roadway).  See, RCW 35.58.240 andState ex rel. O'Connell v. Slavin, supra, at 562.  Therefore, Metro (unlike the other agencies previously discussed) cannot be a full participant in the entire proposed agreement.

            This is not to say, however, that Metro cannot participate in the agreement at all.  The interlocal cooperation act itself provides a number of vehicles by which municipalities can act jointly or in cooperation with each other.  In this case, there is a clear vehicle for Metro's participation in the joint agreement, analogous in some respects to the role of a "limited partner" in a partnership agreement.  We thus believe that sufficient authority exists for Metro to become a party to the interlocal cooperation agreement contemplated by your opinion request.  What our above stated caveat means is simply that is participation in the bridge project must be limited to those costs reasonably related to the construction of public transportation facilities as earlier described.  To cooperate in that manner requires merely that sufficient contract language and accounting methods should be used to insure the limitation of Metro's particpation to that portion of the project in fact as well as in theory.

             [[Orig. Op. Page 14]]

                        Summary

            Again, it is important to note that we have not been provided with the actual text of any specific contract forms in connection with your opinion request.  Therefore, although we have found it possible, on the basis of existing statutes, to provide a generally affirmative response to your several questions we should caution, in closing, that what, in reality, we have thus approved of is basically a concept only.  While each of the public agencies enumerated in your letter may, in accordance with the foregoing, participate in the project through a joint board established by the agencies under an interlocal cooperation agreement, each such agency may only do so to the extent of its own independent statutory or other legal authority and its legally available funds.  And in the case of Metro, any participation by it in the joint board and in the financing should be particularly carefully constructed in order to avoid crossing over into areas in which that municipality has no authority to act.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

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