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AGLO 1978 No. 22 - July 27, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- PORTS ‑- SALE OF REAL PROPERTY BY PORT DISTRICT UNDER RCW 53.08.090

Assuming full compliance by a port district with the procedural requirements of RCW 53.08.090, such a district may sell and convey certain described real property initially acquired by the district as a green belt and buffer zone in connection with its operation of a municipal airport; and in the absence of proof that the subject property was actually, instead, originally acquired for the purpose of resale the potential applicability of Article VIII, § 8 (Amendment 45) of the state constitution presents an entirely moot question.

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                                                                    July 27, 1978

Honorable Eleanor Lee
State Senator, 33rd Dist.
P.O. Box 66274
Burien, WA 98166                                                                                                               Cite as:  AGLO 1978 No. 22

Dear Senator Lee:

            By recent letter your briefly described to us a pending proposal by the Port of Seattle to sell certain real property to ". . . a private manufacturing organization which desires to build a corporate headquarters on the site. . . ."  Then, with that proposal in mind, you asked for our opinion on the following two questions:

            1)         May a port district sell property acquired as greenbelt and buffer for an adjacent single family residential community from an airport by amending its comprehensive improvement plan and making a finding pursuant to RCW 53.08.090 that such property is no longer needed for district purposes?

             [[Orig. Op. Page 2]] 2)            Does Amendment 45 to the Constitution of the State of Washington permit the Port to use public funds to acquire privately owned property for geeenbelt-buffer purposes adjacent to an airport, and then, acting pursuant to RCW 53.08.090, but not RCW Chap. 53.25, to sell such property to a private corporation for private use?

            We respond to your questions in the manner set forth below.

                                                                     ANALYSIS

            Question (1):

            RCW 53.08.090 relates to the sale of property by a port district and provides, in material part, as follows:

            ". . .  As regards property valued at more than twenty-five hundred dollars a district may sell and convey any of its property when the port commission has, by resolution, declared the property to be no longer needed for district purposes, but no property which is a part of the comprehensive plan of improvement or modification thereof shall be disposed of until the comprehensive plan has been modified to find such property surplus to port needs.  The comprehensive plan shall be modified only after public notice and hearing provided by RCW 53.20.010.

            ". . ."

            Assuming full compliance by the Port of Seattle with the procedural requirements of this statute, it would be our opinion that RCW 53.08.090 constitutes sufficient legal authority for the sale which has here been proposed.  In essence, those procedures involve (a) a valid and legally defensible determination, based upon all of the relevant facts, that the particular property in question is ". . . no longer needed for district purposes, . . ." coupled with (b) an appropriate amendment to the port district's comprehensive plan, if applicable, ". . . to find such property surplus to port needs. . . ."  We would hasten to add, however, that it is not a proper function for this office, in an attorney general's opinion,  [[Orig. Op. Page 3]] to attempt to resolve such disputedfactual questions as might well be involved in the making of any such determinations by the district through its commissioners.

            Question (2):

            Your second question involves the potential effect upon the legality of the proposed transaction of Article VIII, § 8 (Amendment 45) of our state constitution which, as adopted by the voters in 1966, reads as follows:

            "The use of public funds by port districts in such manner as may be prescribed by the legislature for industrial development or trade promotion and promotional hosting shall be deemed a public use for a public purpose, and shall not be deemed a gift within the provisions of section 7 of this Article."

            Your question, repeated for ease of reference asks:

            Does Amendment 45 to the Constitution of the State of Washington permit the Port to use public funds to acquire privately owned property for greenbelt-buffer purposes adjacent to an airport, and then, acting pursuant to RCW 53.08.090, but not RCW Chap. 53.25, to sell such property to a private corporation for private use?

            Once again, unfortunately, we must initially note the possibility of disputed facts which could have a bearing on the matter‑-specifically in terms of the port district's true original purpose for acquiring the property in question.  If one assumes, however, the correctness of your statement of the question it would be our opinion that Article VIII, § 8 (Amendment 45), supra, is legally irrelevant to the question of whether the port may now declare the subject property to be surplus and thus sell it in accordance with the provisions of RCW 53.08.090, supra.  Our reasoning, briefly, is as follows:

             [[Orig. Op. Page 4]]   (1) As evidenced by its history the sole purpose and function of Article VIII, § 8 (Amendment 45), supra, is to establish certain limited exceptions‑-in the case of port districts only‑-to certain preexisting constitutional prohibitions of Article I, § 16 (Amendment 9), Article VII, § 1 (Amendment 14) and Article VIII, § 7 of the constitution with respect to (a) the condemnation of privately owned real property for nonpublic purposes, (b) the expenditure of public funds for other than public purposes and (c) the extension of municipal credit or the lending or giving of municipal funds or property.  Accord,Port of Longview v. Taxpayers, 85 Wn.2d 216, 533 P.2d 128 (1974) at pp. 231-233.

            (2) In the absence of proof that the particular parcel of real property which the subject port district now proposes to sell was not initially acquired ". . . for greenbelt-buffer purposes . . ." as stated in your letter, but instead was specifically acquired for the purpose of resale to a private corporation or individual, however, there would be no violation of any of the foregoing constitutional provisions arising from the later sale of that same property.  Accord,Lassila v. City of Wenatchee, 89 Wn.2d 804,   P.2d    (1978); see also, AGO 1978 No. 13 [[to R. Ted Bottiger, State Senator on May 1, 1978, an Informal Opinion, AIR-78513]], copy enclosed.

            (3) Therefore, in the absence of such proof to the contrary the potential applicability of Article VIII, § 8 (Amendment 45), supra, is an entirely moot question.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

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