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AGLO 1981 No. 12 - April 27, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DISTRICTS ‑- PORT ‑- AIRPORTS ‑- IRRIGATION ‑- AGRICULTURE ‑- DEVELOPMENT OF CERTAIN AIRPORT LAND FOR AGRICULTURAL PURPOSES

An airport board established pursuant to RCW 14.08.200 by joint action between two port districts may not develop airport land belonging to the board with irrigation for agricultural purposes; however, such an airport board may lease property to a third party by private negotiation as authorized by RCW 14.08.200(7) even though it is known that the third party intends to develop the land with irrigation for agricultural purposes‑-so long as such development is not made a condition or requirement of the lease.

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                                                                   April 27, 1981

Honorable George L. Sellar
St. Sen., 12th District
411-B Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1981 No. 12

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on two questions which we paraphrase as follows:

            (1) May an airport board established by two port districts pursuant to RCW 14.08.200 develop airport land under its jurisdiction with irrigation for agricultural purposes?

            (2) If the answer to question (1) is in the negative, may such an airport board lease such property to a third party by private negotiation as authorized by RCW 14.08.200(7), knowing that the third party intends to develop the land with irrigation for agricultural purposes?

             [[Orig. Op. Page 2]]

            We answer your first question in the negative and your second question in the affirmative as qualified in our analysis.

                                                                     ANALYSIS

            Question (1):

            The statute authorizing joint airport boards, RCW 14.08.200, is a section of the 1945 Municipal Airports Act, chapter 182, Laws of 1945.  Another section of that chapter, now codified as RCW 14.08.020, describes the purposes of the act as follows:

            "The acquisition of any lands for the purpose of establishing airports or other air navigation facilities; the acquisition of airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipment and operation of airports and other air navigation facilities, and the exercise of any other powers herein granted to municipalities, are hereby declared to be public, governmental, county and municipal functions, exercised for a public purpose, and matters of public necessity, and such lands and other property, easements and privileges acquired and used by such municipalities in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired and used for public, governmental, county and municipal purposes and as a matter of public necessity."

            The term "municipality" is defined in RCW 14.08.010 as follows:

            "(1) For the purpose of this chapter, unless herein specifically otherwise provided, the definitions of words, terms and phrases appearing in the state aeronautic department act of this state are hereby adopted.

             [[Orig. Op. Page 3]]

            "(2) As used in this chapter, unless the context otherwise requires:  'Municipality' means any county, city, town, or port district of this state; 'airport purposes' means and includes airport, restricted landing area and other air navigation facility purposes."

            The airport board referred to in your question is an administrative agency created by the joint action of two such municipalities (specifically, port districts) as authorized by RCW 14.08.200 which provides, in pertinent part, as follows:

            "(1) All powers, rights and authority granted to any municipality in this chapter may be exercised and enjoyed by two or more municipalities, or by this state and one or more municipalities therein, acting jointly, either within or without the territorial limits of either or any of said municipalities and within or without this state, or by this state or any municipality therein acting jointly with any other state or municipality therein, either within or without this state: PROVIDED, The laws of such other state permits such joint action.

            ". . ."

            "(5) Municipalities acting jointly as herein authorized shall create a board from the inhabitants of such municipalities for the purpose of acquiring property for, establishing, constructing, enlarging, improving, maintaining, equipping, operating and regulating the airports and other air navigation facilities and airport protection privileges to be jointly acquired, controlled, and operated.  Such board shall consist of members to be appointed by the governing body of each municipality involved, the number  [[Orig. Op. Page 4]] to be appointed by each to be provided for by the agreement for the joint venture.  Each member shall serve for such time and upon such terms as to compensation, if any, as may be provided for in the agreement.

            "(6) Each such board shall organize, select officers for terms to be fixed by the agreement, and adopt and from time to time amend rules of procedure.

            "(7) Such board may exercise, on behalf of the municipalities acting jointly by which it is appointed, all the powers of each of such municipalities granted by this chapter, except as herein provided.

            ". . ."

            The powers and duties of public officials, agencies and municipal corporations are all governed by the same basic rule; they exist only insofar as they are found in the express terms of a statute, or by necessary implication from such provisions.1/   See,e.g.,Pacific First Federal Savings and Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947); State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            Joint airport boards, as envisioned by RCW 14.08.200, supra, are not separate municipal corporations.  Rather, they are only administrative agencies created by the joint action  [[Orig. Op. Page 5]] of two or more municipalities in order to exercise the powers of those municipalities under chapter 14.08 RCW,supra.  Accordingly, their powers are only derivative; i.e., they possess only the ". . . powers, rights and authority granted to any municipality in this chapter" (RCW 14.08.200, supra) and then only such of those powers as are delegated by the particular municipalities whose joint action has created the board (RCW 14.08.200(7)).

            In a sense, the chapter does delegate to the board a certain degree of independence or quasi-independence, in that the board may exercise the powers ofeach of the municipalities which are parties to the agreement even though some of the municipalities, acting along, might be more restricted than other participants in the exercise of such powers.2/   See, AGO 63-64 No. 35, a copy of which is enclosed.  However, the specific airport board which we are presently considering is one which was created solely by the joint action of two municipal corporations of the same kind;i.e., port districts.  Furthermore, unlike the question in AGO 63-64 No. 35, supra, the question here is not whether the joint board is bound by a specific statutory requirement applicable to some but not all participants; rather, it is whether the subject power has been granted at all, either expressly or by necessary implication‑-i.e., the power to develop lands with irrigational facilities for agricultural purposes.  For, as we have seen, a joint airport board may exercise only those powers which are conferred upon municipalities by chapter 14.08 RCW, and only such of those powers as have been delegated to the board by the joint actions of the participating municipalities.  Consequently, the basic question is whether any provision in the Municipal Airports Act (chapter 14.08 RCW, supra) may be construed as a delegation of power to a port district or other municipality to develop any of its surplus airport lands for agricultural purposes.

             [[Orig. Op. Page 6]]

            Starting from that premise, the necessity for a negative answer to your first question is readily apparent.  The purpose of chapter 14.08 RCW, supra, as declared in RCW 14.08.020, supra, is to provide for the acquisition of lands and facilities for airports, with incidental powers related to that purpose.  No provision of the airport act itself, expressly or by necessary implication, confers directly upon any port district or other corporation, or joint board, the authority to develop any lands for agricultural purposes.  Therefore, an airport board established by two port districts pursuant to RCW 14.08.200 may not develop airport land under its jurisdiction with irrigation for agricultural purposes.

            Having so concluded, however, we should point out the possibility of an alternative approach.  There is in chapter 14.08 RCW a provision under which any municipality may establish an airport commission for the "industrial and commercial development" of its airport.  And such commission is also given incidental authority to develop and lease certain surplus lands for those purposes.  See, RCW 14.08.120(1) and (5).  In turn, the concept of "industrial or commercial purposes" seems broad enough to encompass the development of such lands for agricultural use.  Clearly, therefore, such an airport commission, independent of the existing joint airport board, could be established for that purpose by the two port districts involved in this instance.3/

             We should also make note, before proceeding to consider your second question, of the possible applicability of the Interlocal Cooperation Act (chapter 39.34 RCW) in this case.  Unlike chapter 14.08 RCW, the Interlocal Cooperation Act authorizes any two or more public agencies (including port districts) to exercise jointly any powers that each of them separately possesses.  In other words, the powers which may be jointly exercised under that act are those independently  [[Orig. Op. Page 7]] granted to the participating public agencies and the law itself is merely procedural.  In this instance, however, a problem exists under that analysis because the legislature, in RCW 53.08.160, has restricted the powers of port districts by providing that nothing in that section relating to industrial development by such districts ". . . shall authorize a port district to develop its properties as an agricultural or dairy farm."

            Question (2):

            Your second question, which we repeat here for ease of reference, is as follows:

            If the answer to question (1) is in the negative, may such an airport board lease such property to a third party by private negotiation as authorized by RCW 14.08.200(7), knowing that the third party intends to develop the land with irrigation for agricultural purposes?

            Clearly, on the basis of our answer to question (1), a joint airport board formed by two port districts may not lease surplus lands on any express or implied condition that the lessee will develop the property for agricultural purposes by installing an irrigation system or the like.  Nor may it structure its lease offer in such a manner as to give a special benefit (e.g., by more favorable lease terms) to any particular lessee at public expense, so as to accomplish indirectly that result which the board may not accomplish directly because of its lack of statutory authority.  On the other hand, assuming equality among prospective lessees in all other material respects, the mere knowledge that a particular lessee intends to develop the property in that or any other particular manner would not be a bar to the lease in our opinion.  See, AGO 65-66 No. 91, copy enclosed.4/   And therefore, an affirmative answer to this second question, subject to the foregoing qualification, is in order.

             [[Orig. Op. Page 8]]

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

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

ROBERT F. HAUTH
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/There are some recognized exceptions to this rule in that certain kinds or classes of cities and counties may exercise all appropriate local powers that are not in conflict with any provision of the constitution or state statute or provisions of their own charters.   See Article XI, §§ 11 and 16 of the Washington State Constitution; also Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958); also title 35A RCW (the Optional Municipal Code).  However, neither airport boards nor port districts have been vested with such "home rule" powers.

2/Compare in this respect chapter 39.34 RCW, the Interlocal Cooperation Act, and particularly RCW 39.34.030(5) as interpreted in AGO 1979 No. 2, a copy of which is enclosed.

3/We would, however, think it would be stretching things to read the law as allowing for the creation of such a commission by action of the joint airport board itself.   Rather, the creation of such a commission, like the creation of an airport board itself, seems to us to be in the nature of a generic function of the participating municipalities themselves.

4/We also note that RCW 14.08.200(5) permits such leases by private negotiation‑-without any necessity for competitive bidding.   We would point out, however, that competitive bidding is usually a favored method‑-particularly where, as in this case, any appearance of improperly benefiting a particular lessee is to be avoided.

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