HIGHWAYS ‑- STATUTORY LOCATION ‑- DEVIATION FROM UNDER TERMINOLOGY 'IN THE VICINITY OF TOWNSHIP LINE COMMON TO TOWNSHIPS 38 NORTH AND 39 NORTH'

HIGHWAYS ‑- STATUTORY LOCATION ‑- DEVIATION FROM UNDER TERMINOLOGY "IN THE VICINITY OF TOWNSHIP LINE COMMON TO TOWNSHIPS 38 NORTH AND 39 NORTH"

A legislative act authorizing a highway in the vicinity of a township line is directional only, and construction in the general vicinity of the legislative designation would be legal.

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                                                                February 11, 1954

Honorable W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                    Cite as:  AGO 53-55 No. 202

Dear Sir:

            By your letter of January 28, 1954, you have requested our opinion in regard to the following question: To what extent can the Highway Department deviate from the statutory location of Secondary State Highway No. 1-Z under the terminology "in the vicinity of township line common to townships 38 north and 39 north?"

            In our opinion the above quoted reference is used in the statute to be directional only and may be complied with by the location in the general vicinity of the township line set forth.

                                                                     ANALYSIS

            RCW 47.28.010 states as follows:

            "Latitude in selecting route.  Whenever the general route of a state highway is designated as running to or by way of certain designated points, without specifying the particular route to be followed,the director  [[Orig. Op. Page 2]] shall determine the most feasible route to be followed by the highway to or by way of the designated points, and may select and adopt as a part of the highway, the whole or any part of any existing public highway previously designated as a county road, primary road, or secondary road or at any time classified as a county road.  The director need not select and adopt the entire routes for the state highways at one time, but may select parts of the routes from time to time as he deems advisable.  When a state highway is designated as passing by way of a certain point, this shall not require the director to cause the highway to pass through or touch such point but such designation is directional only and may be complied with by location in the general vicinity.  The director may construct as a part of a state highway as designated and in addition to any portion meeting the limits of a city or town, a bypass section either through or around the city or town."  (Emphasis supplied)

            It is to be noted that the statute in question does not specify the particular route but instead describes the route as "vicinity" and gives an approximate length.  It is submitted that any statutory reference to a way point is, under the statute, directional.  It may be noted, however, that "Slater Road" is given in the act as a terminus and would, therefore, require a connection with said road even though the method or route of reaching it would be somewhat discretionary.

            It appears to us that the language used by the Supreme Court, also discussing a prior statute, inState ex rel. Coyle v. Superior Court, 128 Wash. 460 at 466, is apropos:

            "It was clearly the legislative intent to allow the state highway board to exercise its judgment, when free from bad faith, arbitrary, capricious or fraudulent action in the selection of the particular route, so long as the highway passed through the points named by the legislature in their establishment of the Inland Empire highway.  * * *"

             [[Orig. Op. Page 3]]

            The word "vicinity" is a general term.  It has been defined as follows:

            "Neighborhood.  The word is not an absolute but a relative one, and what is in the vicinity of a place under one set of circumstances may not be so under other circumstances.  In a sparsely settled region a person residing fifteen miles from a road might be regarded as being in the vicinity of it.  SeeSterling v. Carter, Kan. 185 Pac. Rep. 11 [[185 Pac. 11]]."

            It is, of course, difficult to say as a matter of law what amount of deviation could properly be made under a statute making location by vicinity.  It is, however, our opinion that a variance based on sound engineering principles of a half-mile or possibly a mile, as suggested in your letter, would be proper and legal under the law of this state.

Very truly yours,

DON EASTVOLD
Attorney General

DON MILES
Assistant Attorney General