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AGO 1953 No. 148 - October 16, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

HIGHWAYS ‑- LIMITED ACCESS. 

A Limited Access hearing is not required by law when the proposed improvement will be established on a different location than that occupied by an existing highway. 

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                                                                October 16, 1953 

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 148 

 

Attention:  Lorenz Goetz, Secretary
Gentlemen: 

            Your letter of October 2, 1953, requested our opinion as to "whether a limited access hearing is necessary under Chapter 176, Laws of 1951, in connection with a plan of access for PSH No. 1, Nooksack River to Bellingham." 

            In our opinion the answer to your question is in the negative. 

                                                                     ANALYSIS 

            We understand the limited access plan as it relates to your inquiry as follows: 

            1.         A four lane highway with median strip is planned for this improvement.

 

            2.         The right of way required is distinct from, but adjoining, that of PSH No. 1 as presently located.

 

            3.         Initially only two lanes of the improvement will be constructed.

 

            4.         Pending construction of the additional two lanes, the present PSH No. 1 will be used as a one‑direction highway.

 

            5.         At all times access to the present PSH No. 1 will remain unlimited.

 

            6.         All new construction will be a limited access facility. 

             [[Orig. Op. Page 2]]

            7.         Upon completion of the planned construction the present PSH No. 1 will be two-way frontage‑service road. 

            Chapter 167, Laws of 1951, has been codified as chapter 47.52 RCW. 

            RCW 47.52.072 et seq. set forth the procedure for the establishment of an "existing highway" as a limited access facility.  Those sections require a hearing only when an "existing highway" is to be established as a limited access facility. 

            At this juncture it becomes apparent that the definition of "existing highway" is of major importance. 

            RCW 47.52.011 supplies that definition as follows:

 

            "For the purposes of this chapter, the term 'existing highway' shall include all highways, roads and streets duly established, constructed, and in use.  It shall not include new highways, roads or streets, or relocated highways, roads or streets, or portions of existing highways, roads or streets which are relocated."  (Emphasis supplied) 

            Raines v. Terrell County, 151 S.E. 509, 512, 169 Ga. 725 (36 Words and Phrases 798) defines relocate as follows: 

            "The word 'relocate' without addition or qualification, means to locate again, and implies a preservation of the identity of the way without material change.  Relocating is not intended to be used as a method of making important changes in a way.  The above power granted to the State Highway Department to resurvey and relocate the roadbed and right of way of a road taken over by it does not give to that body the authority to wholly abandon the road taken over, and to build an entirely new road.  * * *" 

            The plan described in your request is either a relocation, denoting a change of location which is short of abandonment, or an entirely new highway.  Neither requires a limited access hearing. 

             [[Orig. Op. Page 3]]

            The access to the existing highway is changed only by the existence of a limited access facility adjacent thereto.  Had the legislature desired to prohibit the location of a limited access facility on land adjoining a noncontrolled facility, it could have been done.  This, the legislative branch did not see fit to do, although the problem was fully considered and RCW 47.52.100 was included to authorize the use contemplated by your plan. 

            No valid claim can be asserted by virtue of the establishment of directional traffic, as such regulation is a proper exercise of the police powers of the state. 4 Nichols on Eminent Domain, § 14.244 (4), p. 374; 40 C.J.S. § 232, p. 240. 

Very truly yours, 

DON EASTVOLD
Attorney General 

DON MILES
Assistant Attorney General

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